Clogg v. MacDaniel
| Citation | 43 A. 795,89 Md. 416 |
| Parties | CLOGG v. MacDANIEL. |
| Decision Date | 20 June 1899 |
| Court | Maryland Court of Appeals |
Appeal from circuit court No. 2 of Baltimore city; George M. Sharp Judge.
Suit by Mary E. MacDaniel against James S. Clogg. There was a decree for plaintiff, and defendant appeals. Reversed.
Argued before MCSHERRY, C.J., and PEARCE, FOWLER, BOYD, and SCHMUCKER, JJ.
Hodson & Hodson and Charles O. Melvin, for appellants. George M Upshur, for appellee.
The contention in this case has arisen out of the following facts: On the 23d of April, 1889, Stephen MacDaniel took out a certificate of membership in the Peninsula Mutual Relief Association of Talbot County. The association, by means of assessments, provided for the payment of a fund to the widows, orphans, or other beneficiaries of its deceased members, or to such other persons as the beneficiaries might designate. The amount of the fund payable upon the death of a member was specified to be a sum equal to the aggregate received from a single death assessment, but in no event was that sum to exceed $2,000. One of the stipulations provided that, in case the certificate should be lawfully assigned or held as security, written notice thereof was to be immediately given to the association, and that due proof of interest should be produced with the proof of death. Two things were required by this provision, viz. immediate notice of an assignment, and proof of interest with the proof of death. By the terms of the certificate issued to MacDaniel the association agreed to pay to Mary E. MacDaniel, wife of the insured, "her heirs or assigns," the sum which might become due upon the death of Stephen MacDaniel. On October 7, 1889, the beneficiary, Mary E. MacDaniel, and her husband, the assured, in consideration of the payment of all accruing dues, assigned the certificate to James E. Clogg, in proper form. Clogg paid all dues and assessments during the life of MacDaniel. On November 30, 1896, MacDaniel died. Both Clogg, the assignee, and Mary E. MacDaniel, the widow claimed the fund payable under the certificate. Clogg claimed the whole of it, and Mrs. MacDaniel claimed $1,000 of it. The relief association then filed a bill of interpleader, bringing into court the money realized by one assessment, and asking that the two contending claimants be required to interplead. In this bill the relief association referred to the assignment of the certificate to Clogg as the evidence of Clogg's asserted title to the fund. The association made no denial of its obligation to pay the money to some one, nor did it dispute the right of Mrs. MacDaniel to assign the certificate. Both Clogg and Mrs. MacDaniel answered the bill. By the decree of interpleader, Mrs. MacDaniel was made plaintiff, and Clogg was made defendant. Testimony was taken in behalf of the plaintiff before an examiner of circuit court No. 2, and in behalf of the defendant under a commission issued to Worcester county. The regularity of the execution of this commission was assailed by exceptions. These exceptions were sustained by the lower court, and the whole of the evidence taken under the commission was excluded. A decree was signed, awarding to Mrs. MacDaniel $1,000 of the fund brought into court, and awarding to Clogg the residue, after deducting all the costs of the proceeding. The total amount of the fund brought into court was $1,538.16. The costs aggregated $166.80. Deducting this, there remained $1,371.36. Of this residue, $1,000 was decreed to belong to Mrs. MacDaniel, and the remainder ($371.36) to Clogg. From this decree Clogg has appealed.
The exceptions to the admissibility of the testimony taken under the commission issued to Worcester county are in reality exceptions assailing the regularity of the execution of the commission, and having been sustained, and all of the evidence adduced by Clogg having been thus excluded, the propriety of this decision lies at the threshold of the case, and will therefore be considered at once. The commission was issued, by agreement, to John W. Staton. He took and subscribed the oath before the clerk of the circuit court for Worcester county on September 20, 1898. He executed the commission the following day, and, with the depositions taken under it, it was filed in circuit court No. 2 of Baltimore on the 26th of the same month. By an order passed on November 11th, the case was set down for hearing on December 8th. On December 6th the exceptions relied on to exclude the testimony taken under the commission were filed. These exceptions are founded on the assertions--First, that the commissioner did not take the oath required by law and as directed by the commission; and, secondly, that the return of the commissioner does not show the place where the commission was executed. With respect to the first of these grounds, it must be conceded that the clerk of the circuit court for Worcester county had no authority to administer to Mr. Staton the oath prescribed in the commission to be taken by a commissioner; but it does not thence follow, by any means, that this exception ought to have prevailed. The failure to take the oath, or, what is the same thing, taking it before an officer not authorized to administer it, is an irregularity in the execution of the commission not more serious, or at least not unlike, an omission to give notice of the time and place when and where the commission will be executed; and, though both would justify the suppression of the evidence, if availed of within a reasonable time after the return of the commission, neither will be allowed to prevail, if sprung at a time when it would be impossible to retake the depositions before the case has been fixed and is taken up for hearing. The proper practice, when such objections are relied on, is to move, within a reasonable time after the return of the depositions, to suppress the evidence taken under the commission, and not to wait until it becomes too late to retake the testimony for use at the hearing. The law requires due diligence in both parties. Both must act with reasonable promptness. A failure to do this will be treated as a waiver of such informalities, because after an acquiescence, which will be assumed as the result of mere passivity, it might, and most probably would, occasion both hardship and injustice if either party to a cause were permitted, at the last moment, to rely on and successfully assert such irregularities...
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